Arrick v. State

• Decision Date: 24 April 2003
• Docket Number: No. 03-02-00166-CR.,03-02-00166-CR.
• Citation: 107 S.W.3d 710
• Parties: Jason Alan ARRICK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

107 S.W.3d 710

Jason Alan ARRICK, Appellant, v. The STATE of Texas, Appellee.

No. 03-02-00166-CR.

Court of Appeals of Texas, Austin.

April 24, 2003.

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Mark H. Barber, Marty K. Cannedy, Wichita Falls, for appellant.

John W. Brasher and Starla Jones, Asst. Crim. Dist. Attys., Wichita Falls, for appellee.

Before Justices KIDD, B.A. SMITH and YEAKEL.

OPINION

LEE YEAKEL, Justice.

A jury found appellant Jason Alan Arrick guilty of murder and assessed punishment at imprisonment for life and a $10,000 fine. Tex. Pen.Code Ann. § 19.02 (West 2003). He brings forward eleven points of error complaining of the overruling of his motion to suppress evidence, the admission of expert opinion testimony, the admission of hearsay, and the overruling of motions for mistrial. We will overrule these points of error and affirm the conviction.

Background

Appellant was romantically involved with Marian Rebecca Dow during the summer of 1999. In August of that year, Dow conspired with others to burglarize appellant's parents' house on Carriage Lane in an unincorporated part of Wichita County, where appellant was then living. When appellant learned of Dow's involvement in the burglary, he lured her to the house on Carriage Lane, where he beat and fatally shot her. Appellant placed Dow's body in the trunk of his Chrysler automobile and took it to a location in rural Oklahoma, where it was discovered in December 1999. Meanwhile, appellant began living with Sharon Davis at her house in Archer County. Appellant told several people that he had killed Dow and disposed of her body in Oklahoma, and this information eventually made its way to law enforcement officials.

Search Warrants

In January 2000, warrants to search the house on Carriage Lane, the house in Archer County, and appellant's Chrysler were issued and executed. Among the items seized at the Carriage Lane house were carpet samples shown by DNA tests to be stained with Dow's blood. A .22 caliber handgun and bullets were found in the Archer County house. Hair found in the trunk of appellant's Chrysler matched hair taken from Dow's body.

By six points of error, appellant contends the district court should have suppressed all evidence seized during the execution of the three January 2000 search warrants. Except for the descriptions of the places to be searched, the warrants and supporting affidavits were virtually identical. We will describe the warrants and affidavits in greater detail in our discussion of the various points of error. The probable cause portion of the affidavits is attached as an appendix to this opinion.

Scope of Searches

In point of error two, appellant urges that the property seized pursuant to the three search warrants was inadmissible because the seizures were outside the scope of the authorized searches. See Tex. Code Crim. Proc. Ann. art. 18.04(2) (West 1977) (search warrant must describe place to be searched and identify that which is to be seized). Appellant's contention is based on the following paragraph, contained in all three warrants, describing the authorized search: "NOW, THEREFORE, you are commanded to enter the suspected place and premises described in said Affidavit and to there search for the person described in said Affidavit and to seize him and bring him before me." Appellant asserts that the three warrants, by their terms, authorized the police to search for and seize only the person described in the supporting affidavits, that is, himself. See id. art. 18.02(11) (West Supp.2003) (authorizing warrants to search for and seize persons). Appellant argues that because the warrants did not authorize the seizure of any property, all property seized during the execution of the warrants should have been suppressed.

A similar argument was made in Faulkner v. State, 537 S.W.2d 742, 744 (Tex. Crim.App.1976). In that case, a search warrant directed officers "to enter the suspected place described in said affidavit and seize same and bring it before me." Id. Read literally, the warrant only authorized the seizure of the premises to be searched. Noting, however, that the warrant incorporated the probable cause affidavit by reference, and that the affidavit demonstrated that there was probable cause to believe that marihuana could be found in the premises to be searched, the court concluded, "Common sense ... tells us that when the warrant orders the officer `to seize same' it is ordering the seizure of the contraband which formed the basis of the affidavit; that is, the marihuana." Id.

As in Faulkner, the search warrants before us incorporated the probable cause affidavits by reference. In each of the affidavits, the affiant stated his belief that appellant murdered Dow by shooting her and that evidence of that offense could be found in the vehicle or premises to be searched, specifically a "metal cross made out of the barrel of the weapon used to kill Dow, other parts, pieces or components of said weapon. Blood stains, clothing, and jewelry of deceased." When the search warrants and supporting affidavits are read in a common-sense manner, it is clear that the warrants ordered the seizure of the evidence described in the affidavits. Appellant's contention that the warrants authorized only the seizure of his person is without merit. Point of error two is overruled.

Appellant makes three arguments in point of error four. First, he urges that, for want of probable cause, the three warrants were invalid insofar as they authorized the seizure of anything except Dow's bloodstains. Based on this premise, appellant urges that the police exceeded the lawful scope of the warrants when they seized other materials. As we will discuss hereafter, we conclude that the search warrants were supported by probable cause in their entirety. Because we reject the premise on which it is based, no further discussion of this portion of point of error four is required.

Second, appellant asserts that the warrants authorized the police to search only for visible bloodstains. He contends the police exceeded the scope of the authorized searches when they used luminol, a chemical agent, to locate bloodstains at the Carriage Lane house that were not otherwise visible. The only authority appellant cites for this contention is a dictionary definition of "stain." It is a matter of common knowledge that criminals who commit bloody crimes commonly attempt to hide evidence of the crime by cleaning the scene. Under the circumstances, we conclude that the officers' use of luminol did not exceed the scope of the search authorized by the warrants.

Third, appellant argues that positive luminol tests did not justify the seizure of bloodstained carpet and wall paneling at the Carriage Lane house because the luminol test is merely a presumptive test for blood. He asserts that absent positive identification of the stains as blood and, more particularly, as Dow's blood, these seizures were not authorized by the warrant. Appellant again cites no authority to support this argument. We believe that under the circumstances shown here, the officers executing the Carriage Lane search warrant were reasonably justified in believing that the stains revealed by the luminol in the carpet and elsewhere were Dow's blood. Point of error four is overruled.

Probable Cause

In three points of error, appellant contends the search warrants were not supported by probable cause. See Tex.Code Crim. Proc. Ann. arts. 1.06 (West 1977), 18.01(b) (West Supp.2003) (search warrant must be supported by sworn statement of probable cause). With one minor exception, the same statement of probable cause was used in each of the three supporting affidavits. This statement is shown in the appendix.

Probable cause to support the issuance of a search warrant exists when the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim.App.1986); Hackleman v. State, 919 S.W.2d 440, 447 (Tex.App.-Austin 1996, pet. ref'd, untimely filed). The sufficiency of a search warrant affidavit is determined by use of "totality of the circumstances" analysis. Illinois v. Gates, 462 U.S. 213, 234, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Hennessy v. State, 660 S.W.2d 87, 90 (Tex. Crim.App.1983); State v. Bradley, 966 S.W.2d 871, 873 (Tex.App.-Austin 1998, no pet.). Only the facts found within the four corners of the affidavit may be considered.¹ Jones v. State, 833 S.W.2d 118, 123 (Tex.Crim.App.1992). Reasonable inferences may be drawn from the affidavit, however, and the affidavit must be interpreted in a common-sense and realistic manner. Lagrone v. State, 742 S.W.2d 659, 661 (Tex.Crim.App.1987); Carroll v. State, 911 S.W.2d 210, 216 (Tex.App.-Austin 1995, no pet.).

Appellate review of the sufficiency of an affidavit does not take the form of de novo review. Instead, the issuing magistrate's probable cause determination must be given great deference by a reviewing court, and will be sustained so long as the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Gates, 462 U.S. at 236, 103 S.Ct. 2317; Johnson v. State, 803 S.W.2d 272, 289 (Tex.Crim.App.1990); Bradley, 966 S.W.2d at 873.

Identity of body

In point of error one, appellant contends the affidavit did not give the issuing magistrates probable cause to believe that Dow had been murdered, much less that the body found in Oklahoma was Dow's. At the time the search warrants were issued, Dow's body had not been positively identified. Appellant argues, without citation to supporting authority, that "the only evidence that would justify a finding of probable cause that the offense of murder had been committed against [Dow] was to have a positive forensic finding such as [a] fingerprint exam." This argument ignores the totality of...